Ujka v. Sturdevant

• Decision Date: 02 July 1954
• Docket Number: No. 7392,7392
• Citation: 65 N.W.2d 292
• Parties: UJKA v. STURDEVANT et al.
• Court: North Dakota Supreme Court

Page 292

65 N.W.2d 292

UJKA v. STURDEVANT et al.

No. 7392.

Supreme Court of North Dakota.

July 2, 1954.

Syllabus by the Court.

1. The power of a city to enact an ordinance must be derived from a specific legislative grant of power or be fairly implied in or incident to a specific grant of power.

2. Subsection 75 of Section 488 Chapter 77, Laws of N.D.1911 granted to cities with the Commission form of government the power 'to establish building lines fixing the distance from the property line at which buildings may be erected.'

3. Section 64 of Chapter 77, Laws of N.D.1911, fairly implies that there shall be no distinction or discrimination as to the possession of powers by cities based upon form of government but that the powers of all cities, whatever their form of government shall be equal and co-extensive.

4. The power of a city 'to establish building lines fixing the distance from the property line at which buildings may be erected' includes the power to prescribe reasonable regulations with respect to side yards.

5. The enactment of the statute authorizing cities to adopt zoning ordinances, Section 40-4713, NDRC 1943, did not restrict powers previously granted to cities to adopt reasonable ordinances with respect to lot usage.

Burnett, Bergesen, County & Whittlesey, Fargo, for appellant.

Forbes & Forbes, Wahpeton, for respondents.

BURKE, Judge.

The main question upon this appeal is whether the City of Wahpeton had the power to enact its ordinance 14-439, which restricts the use of building lots by prescribing the proportions of lots which are to be left as side yards. The question arose upon plaintiff's action to enjoin the defendants, Virgil and Lucylle Sturdevant from violating the ordinance by building closer to the side boundary of their lot than the ordinance permitted. In this action the trial court ordered judgment for the defendants. Plaintiff has appealed from the judgment and has raised the issues upon appeal by specifications of error.

The ordinance in question provides:

'Section 14-439. Lot Restrictions The minimum dimensions of yards and courts and the maximum building area shall be as follows:

'(a) * * *

'(b) * * *

'(c) Side yard. There shall be a side yard on each side of the building, each yard having a width of not less than ten percent (10%) of the lot width. The width of such yard, however, need not exceed six feet, provided its width shall not be less than equal to one-eight (1/8) of the height of the building.'

The power of the City of Wahpeton to enact such an ordinance must of necessity lie in a specific legislative grant of power or be fairly implied in or incident to a specific grant of power. City of Dickinson v. Thress, 69 N.D. 748, 290 N.W. 653; Lang v. City of Cavalier, 59 N.D. 75, 228 N.W. 819; Village of North Fargo v. City of Fargo, 49 N.D. 597, 192 N.W. 977. Plaintiff cites three statutes, anyone of which, she urges, constitutes an adequate source of power. They are subsections 7 and 13 of Section 40-0502 and Subsection 1, Section 40-0501, NDRC 1943.

We shall direct our attention first to Subsection 13, supra. This section provides that municipalities shall have power: '* * * to establish building lines fixing the distance from the property line at which buildings may be erected'. The part of the section above quoted first appeared in Subsection 75 of Section 48, Chapter 77, Laws of N.D.1911. This section contained grants of power to cities with the commission form of government. Prior to the adoption of the North Dakota Revised Code of 1943, the grants of power to cities with the council form of government and the grants of power to cities with the commission form of government were contained in separate statutes and there was no specific grant to cities with the council form of government of a power similar to that set forth in Subsection 75, supra.

However, Section 64 of Chapter 77, supra, provides:

'All the provisions of law now in force or which may hereafter be passed by the legislative assembly in relation to the powers, duties or privileges of the president of boards of trustees * * * towns or villages, or mayors of cities, are hereby granted to the president of the board of city commissioners, and except where inapplicable all the provisions of law now in force or hereafter passed by the legislative assembly in relation to the powers, duties or privileges of town or village trustees, or other municipal boards thereof, or the powers, duties or privileges of city councils are hereby granted to the board of city commissioners provided for in this act; provided, cities incorporated under this act shall for all purposes according to their respective population retain the classification otherwise provided by law.'

This section specifically provides that cities with the commission form of government shall have all the powers possessed by cities with the council form of government and while it does not expressly provide the cities with the council form of government shall have all the powers possessed by cities with the commission form of government, we think it is a fair construction of the language used to say it clearly implies that there should be no distinction or discrimination as to the possession of powers by cities based upon form of government but that the powers of all cities, whatever their form of government, should...